Bartsch v. Stuart ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RANDOLPH L. BARTSCH,
Plaintiff-Appellant,
v.
DONALD E. STUART; JOHN P. STUART,
No. 97-1713
Defendants-Appellees,
and
DAVID G. PAYNE,
Defendant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CA-96-762-2)
Submitted: May 12, 1998
Decided: June 9, 1998
Before ERVIN and MICHAEL, Circuit Judges, and HALL,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William W. White, Jr., Greensboro, North Carolina, for Appellant.
Jonathan A. Berkelhammer, SMITH, HELMS, MULLISS &
MOORE, L.L.P., Greensboro, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Randolph L. Bartsch appeals from the district court's order dis-
missing his complaint for failure to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b)(6). The district court found
that the "gravamen of the Complaint lies in libel and slander," and
that the complaint was filed beyond the one-year statute of limitations
for actions for defamation under North Carolina law. See N.C. Gen.
Stat. § 1-54(3) (1996). Bartsch appeals from this order, contending
that the complaint set forth a cause of action for breach of contract
and that the district court erred in dismissing the entire complaint
after finding only one of the claims for relief barred by the statute of
limitations. Because we find that the complaint failed to adequately
allege the existence of a contract and a breach thereof, we affirm.
Bartsch filed his complaint* alleging that Donald Stuart requested
that Bartsch recover for him an automobile that his son, John, had
"lost or traded." Donald provided proof of ownership and written
authority to recover the vehicle, stating "spare no expense." Bartsch
recovered the vehicle from John, and, with John's consent, Bartsch
had the vehicle taken to his house. John later contacted the police and
reported the car stolen. Bartsch was arrested and jailed overnight. The
car was returned to John pursuant to Donald's orders.
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*Jurisdiction in the federal court was grounded on diversity of citizen-
ship, see 28 U.S.C.A. § 1332(a) (West 1993 & Supp. 1998), Bartsch
being a citizen of North Carolina, Donald Stuart and John P. Stuart citi-
zens of Massachusetts, and David Payne a citizen of North Carolina. By
prior order, the district court dismissed the claims against David Payne
for lack of complete diversity. See Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267 (1806); Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373-74 (1978).
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The Stuarts moved to dismiss the complaint for failure to state a
claim upon which relief may be granted. They asserted that the com-
plaint alleged claims of libel and slander and that the defamatory
statements were made on May 14, 1995. Because the complaint was
not filed until September 16, 1996, the claims for libel and slander are
barred by the one-year statute of limitations. See N.C. Gen. Stat. § 1-
54(3). When Bartsch failed to respond to the motion to dismiss, the
district court clerk advised him that the motion would be referred to
the court as an unopposed motion. The clerk also advised that Bartsch
could file a belated response upon a showing of excusable neglect.
Bartsch still did not respond.
Addressing the motion to dismiss, the district court noted that the
complaint contained many conclusory allegations of fact and that the
focus of the complaint was a defamation claim. The court found the
action barred by the statute of limitations and dismissed the com-
plaint. On appeal, Bartsch asserts--for the first time--that the com-
plaint alleged a cause of action for breach of contract. Despite several
opportunities, Bartsch failed to present this contention to the district
court. We ordinarily do not consider questions not raised in or consid-
ered by the district court, see McGowan v. Gillenwater, 429 F.2d 586,
587 (4th Cir. 1970), and we decline to do so here.
In conclusion, we affirm the district court's order dismissing the
complaint for failure to state a claim for relief. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
3